In December 2004, Laura Thurmond bought a tidy 1950s-era home in
the 4500 block of Park Court in Bellaire. The owner of a
construction services firm, Thurmond was set to enjoy life in the
quiet suburban setting. But that seemingly picture-perfect
lifestyle was already marred by the sight next door.

The neighboring house, built around the same time as Thurmond’s,
had been all but abandoned by its owner in 2001, after Tropical
Storm Allison flooded it and hundreds of other homes in that part
of the city. While Thurmond and Susan Pilat, a neighbor across the
street, sometimes saw the woman briefly visit the small house, it
rapidly fell into an even greater state of disrepair. They believe
the owner, Drina Henry, still lives in the Houston area.

Today, tall weeds obscure the front porch of the house, and old
newspapers still in their plastic wrapping litter the front yard. A
small Toyota covered in grime sits on a weed-infested driveway.
Most alarming to Thurmond is the backyard, overrun by weeds and
limbs from a massive tree that fell during 2008’s Hurricane Ike.
One large limb crashed through the house’s roof, further exposing
the already-deteriorated interior to the elements.

Thurmond, Pilat and other neighbors, fed up with the eyesore of
a house and its potential health and safety hazards — not to
mention a depressing effect on property owners — finally complained
to city officials, who boarded up the windows and doors.

In April, the city’s Building and Standards Commission heard the
neighbors’ official complaint and ruled that the house posed a
threat to health and safety. Henry didn’t appear to present
evidence, and the commission — under its authority designated by
state and local laws — ordered that the home be demolished.

According to Bellaire City Manager Bernie Satterwhite, city
officials were in the process of doing just that when Alan Petrov,
the city’s attorney, recommended that they halt the proceedings.
The reason: On July 1, the Texas Supreme Court issued a 5-4 ruling
that made a sweeping change to the interpretation of how a city or
other governmental entity can “take” a person’s private
property.

The case, City of Dallas v. Heather Stewart, involved a
situation similar to the one involving Thurmond. A city of Dallas
board recommended that a long-dilapidated home be demolished. The
city did that, but the owner, Stewart, sued in district court,
saying the city had unlawfully taken her property. At trial, the
jury ruled in her favor, and Stewart was awarded her $75,707.67 for
the destruction of her home.

Dallas appealed the case to the Texas Supreme Court, which ruled
July 1. In the majority opinion, Chief Justice Wallace Jefferson
acknowledged that cities “must be able to abate dilapidated
structures” that “threaten neighborhoods.” But, Jefferson wrote,
cities must set up a mechanism to address that threat that complies
with Texas constitutional mandates that protect private property
rights.

“Today we hold that a system that permits constitutional issues
of this importance to be decided by an administrative board, whose
decisions are essentially conclusive, does not correctly balance
the need to abate nuisances against the rights accorded to property
owners under our constitution,” Jefferson wrote, adding that
independent review of a court is necessary.

“The protection of property rights, central to the functioning
of our society, should not — indeed, cannot — be charged to the
same people who seek to take those rights away,” Jefferson
concluded, referring to bodies like a municipal building and
standards commission.

But the 5-4 ruling — by a court made up entirely of Republicans
— was as narrow as it could be, with two strongly written dissents.
In her dissent, Justice Eva Guzman of Houston said that “the Court
misses the crux of the constitutional issue here: do the procedures
created by the Legislature for abatement of urban nuisances violate
the due process rights of property owners?”

Guzman wrote that the Legislature has properly laid out the
process by which a city like Bellaire can form boards designated to
make a determination whether a house is a public nuisance that
should be demolished. She said the majority had completely reversed
years of legal precedent in its ruling that a district court should
make those determinations.

“The Court’s decision opens the door to a host of ... challenges
to agency determinations of every sort, and in every such challenge
a right to trial de novo will be claimed,” Guzman wrote. “Judges at
every level of our court system are invited by today’s decision to
substitute their own factual determinations for that of an agency
or even a lower court.”

For Petrov, who in addition to Bellaire serves as the city
attorney for West University Place and Hedwig Village, the ruling
poses a clear threat to municipalities’ future efforts to abate
nuisances. Even though the ruling doesn’t remove a board’s ability
to make a judgment, he said, proceeding with such a demolition
opens a city like Bellaire up to potentially very costly
litigation.

That’s why he recommended to Bellaire that it not proceed with
the demolition of the house on Park Court. He said he wasn’t aware
of any other pending demolitions in either Bellaire or West
University.

Matthew Festa, who teaches administrative law at the South Texas
College of Law, said the city of Dallas has filed a motion to the
Supreme Court asking for a rehearing of the case. That’s a “pretty
big deal,” Festa noted, since the court is usually loathe to rehear
such a significant ruling.

If it fails to overturn the ruling, the city’s only other
recourse would be to seek an appeal to the U.S. Supreme Court.
Festa said it would be extremely unlikely that the high court would
agree to hear the case.

The cities of Houston and San Antonio filed a “friend of the
court” brief on behalf of Dallas in the case.

Tom Allen, an assistant city attorney for Houston, agreed that
Wallace’s majority opinion was written in such a way as to be
almost “bulletproof” when it comes to an appeal.

While Houston hasn’t imposed a “moratorium” on demolition orders
in the wake of the ruling, Allen said the city will be looking even
harder at such judgments on a case-by-case basis, and will be
monitoring the case very closely.

Thurmond, the Bellaire homeowner, says that whatever the court’s
ruling, Bellaire has a duty to either demolish her neighboring
house or take a more active role in making sure its hazards are
abated. She made her feelings known quite vocally at the Aug. 1
City Council meeting.

“They’ve had ample time to take of the problem even before the
July 1 ruling even came about,” Thurmond said.

“I can’t see why they can’t at least fix it or remediate it,”
she said later.

Mayor Cindy Siegel noted that the Council will hold an executive
session on the matter before its Aug. 16 special session on the
next city budget.

Welcome to the discussion.

2 comments:

I am rather disturbed at the statement from the article, "But that seemingly picture-perfect lifestyle was already marred by the sight next door." So - doofus Laura Thurmond bought a house next door to a property that was not well kept, and thought she could bully and/or strong-arm the owner into getting everything up to her (Thurmond's) standards? Another question: did Laura Thurmond or the other neighbors bother to ask Drina Henry if she had troubles, and if they could help in any way? People in Bellaire don't exactly live on acreage lots, so it wouldn't be such a difficult task for neighbors to take turns mowing the yard. Sounds like a bunch of snots wanting to turn their unworthy noses up at someone else. Sheesh.